Hurlburt v. Kneeland

Redeield, Ch. J.

There is some evidence reported by the. auditor in this case which might lead one to conjecture, if not to conclude, that the auditor might without any great stretch of inference, have come to the conclusion that the defendant did ratify at least, if not authorize, the purchase of all the hay purchased of the plaintiff by Brooks, and that in fact it ought to be regarded as a purchase by the defendant.

But the facts are not so found. The auditor reports expressly that Brooks was authorized by the defendant to purchase one-half of the hay on his account, and no more, and that the defendant carried away his half and has paid the plaintiff for the same. This seems to us decisive of the case. Qjt is not a case where the authority extends to the whole, and special instructions are given by the principal to his agent in regard to the bargain, affecting onedialf, In such case it is well settled that the principal is bound to the extent of the authority conferred notwithstanding the agent, even if he be a special agent,- depart from his instructions.^ This is expressly decided in tjie leading and familiar case of Fenn v. Harrison, 3 Term 754 ; opinion of Asiihurst, J., p. 757; Bayley, J., in Pickering v. Busk, 15 East. 45. The elaborate opinion of Ch. J. Parker, in Hatch v. Taylor, N. H. 538, goes upon the same distinction. The present case seems to be one of want of authority, in tire agentj^ The contract does not, therefore, bind the defendant.

Judgment affirmed.